Miltenberg: “Why an ex-Sex Crimes Prosecutor Is Fighting Netflix,” The New York Times

A federal judge has rejected a move to dismiss the defamation lawsuit filed by the former Manhattan sex crimes prosecutor Linda Fairstein over the way she was portrayed in a 2019 Netflix series about the Central Park Five case. Judge P. Kevin Castel denied a motion by Netflix and Ava DuVernay, who directed the four-part series “The Way They See Us” and was one of its writers. The ruling clears the way for Fairstein’s lawsuit to go to trial unless it is settled first. Fairstein led the sex crimes unit in the Manhattan district attorney’s office in 1989, when five Black and Latino teenagers were charged with the rape of a white female jogger in Central Park. They were convicted in part because of false confessions obtained by the police. When the true assailant confessed in 2002, their rape convictions were overturned; and in 2014, they won a $41 million settlement from the city. One of the five, Yusef Salaam, ran for a City Council seat in Harlem and won a contested primary in July. “They Way They See Us” presented Fairstein, played by Felicity Huffman, as intent on seeing the five teenagers convicted, regardless of inconsistencies that pointed to their innocence. Judge Castel quoted DuVernay as saying that she decided to make “When They See Us” “because the official version of events had portrayed the Five as ‘an animalistic “wolf pack” of rapists; whereas she saw them as children who became ‘honorable, decent men.”‘ DuVernay, the judge wrote, said she “did not set out ‘to target’ or ‘cancel”‘ Fairstein. But he added that she came to have “‘no doubt whatsoever’ that Fairstein was central to the investigation and prosecution, was ‘morally and legally culpable’ for the case’s outcome and that ‘she crossed moral and ethical lines and breached the public trust.”‘ Fairstein, Judge Castel wrote, maintains that she “lacked the authority to instruct N.Y.P.D. members on interrogation techniques or to direct them to round up suspects, and that she never did so.” The judge said there was evidence that “by opting to portray Fairstein as the series villain who was intended to embody the perceived injustices of a broader system,” the series “reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers” and were not reflected in “the substantial body of research materials” assembled in preparing the series. “Notably,” the judge wrote, “Fairstein does not complain that she was defamed through the use of a fictionalized composite character. Her claims are directed to words and deeds attributed to her by name.” Fairstein’s lawyer, Andrew Miltenberg, said by email that the decision “makes clear that there is not a stitch of source material to support the defamatory portrayal of Ms. Fairstein in the series.” He added that when the case goes to trial, “the evidence will again show that, fueled by their animosity, the defendants imputed conduct to Ms. Fairstein that has no relationship to the truth.” A Netflix spokesman defended the program and those who prepared it. “We are proud of ‘When They See Us’ and fully support the incredible team behind the series including Ava DuVernay, Attica Locke and our colleagues at Netflix;’ the spokeswoman said by email. “We look forward to presenting our defense to the jury.” A lawyer representing DuVernay and Attica Locke, a co-writer, did not respond to a call for comment; DuVernay did not respond to a call to her office in Los Angeles.

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